The state's highest court made several legal errors -- some that could prove detrimental in deciding future legal disputes -- in its June 23 ruling that upheld the state's execution law, according to a recent appeal.
EXECUTIONS: In-depth look at 4 men put to death in April + 3 others whose executions were stayed
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On Thursday, Jeff Rosenzweig, an attorney representing the group of death row inmates who sought to void the execution law, filed a petition for rehearing with the Arkansas Supreme Court, claiming the four justices who ruled against the inmates' cause did not follow the proper legal standards in their ruling and even ignored outright a mandate in the state constitution.
The Supreme Court ruled against the inmates in overturning a lower court ruling that found parts of the state's execution law to be unconstitutional. But the timing of the court's 4-3 ruling made performing executions impossible in the short term. One of the three drugs mandated by Act 1096 of 2015 to be used in executions expired on July 1.
The vendor who sold the last batch of drugs is no longer willing to sell to Arkansas, and the director of the Arkansas Department of Correction said the state has not found a new supplier.
The two other drugs used in the execution cocktail will expire next year.
Arkansas Attorney General Leslie Rutledge did not seek an expedited mandate from the court, which is usually issued about 18 days after a ruling to allow for a final appeal.
Executions cannot be scheduled by the governor until a mandate is issued by the high court. If Rosenzweig had not filed his petition, it would have been issued Tuesday.
The state will have seven days to respond to Rosenzweig's petition, but the court has no set timeline on how soon it must rule on the petition.
If the court were to deny the prisoners' petition, the mandate would be issued immediately.
Rutledge spokesman Judd Deere said his office will likely file a response within the week. When asked if Rutledge would ask Gov. Asa Hutchinson to set execution dates even if the state doesn't have the means to execute inmates, Deere said Rutledge must fulfill the functions of her position.
"That'll be something we'll have to consider when the mandate has been issued," Deere said. "Her job as the state's attorney is to notify the governor when there is no litigation preventing executions from occurring."
Due to legal challenges and difficulties in finding a supply of execution drugs, Arkansas hasn't executed an inmate since 2005.
Lawmakers crafted Act 1096 with a provision that barred public disclosure of the identity of the state's supplier of execution drugs -- a provision crafted to give those companies protection from public backlash.
In September 2015, Hutchinson scheduled executions for eight of the nine inmates who had already challenged the law in Circuit Court.
In December, Pulaski County Circuit Judge Wendell Griffen ruled that the nondisclosure language violated parts of the state's constitution. A narrow majority on the state Supreme Court disagreed, and the four justices upholding the law also ruled that the death row inmates' rights to due process and freedom from cruel or unusual punishment were not violated by the law.
Rosenzweig has said he still feels the law is unconstitutional and that the court's ruling could have unintended, negative implications on future court cases.
The petition Rosenzweig's filed Thursday argues that the ruling was wrong in its interpretation of the Publication Clause of the state constitution, which states that "an accurate and detailed statement of the receipts and expenditures of the public money, the several amounts paid, to whom and on what account, shall, from time to time, be published as may be prescribed by law."
The Supreme Court ruled that such information could be "published" if the Legislature allowed it to be disclosed to parties by a protective court order.
That interpretation of "publish" is an "abuse" of the English language, Rosenzweig wrote. In a dissent, Supreme Court Justice Robin Wynne argued that for something to be published, it must be publicly available and subject to a private, legal agreement.
"The Publication Clause mandates that payees of public money be disclosed to the general populace. But the Court's reading of the term 'published' will allow the legislature to impose any restriction it wants on distribution, including an outright ban," Rosenzweig wrote. "The Constitution's text does not permit that."
Although the high court ruled that the inmates failed to spell out an alternative to the lethal injection protocol, as is required by federal precedent, Rosenzweig's filing contends that the inmates provided enough in their pleading to satisfy the requirement.
Rosenzweig also argued that the justices incorrectly interpreted a 2013 agreement between the inmates and state prison officials that required disclosure of the source of the drug supply, an agreement that the state reneged on, Rosenzweig argued.
Metro on 07/08/2016